Dennett v. State

Thompson, J., delivered the opinion of the Court. On March 5, 1973, William King Dennett, the appellant, made a motion to dismiss an indictment against him upon grounds he was not being tried within the 180 day period prescribed in the Interstate Agreement on Detainers Act, Md. Code, Art. 27, § 616D (a). Judge Joseph M. Mathias denied the motion and commenced trial immediately. The jury found appellant guilty of taking money under false pretenses.

Judge Mathias imposed a five (5) year sentence to run consecutive to sentences previously imposed in foreign jurisdictions. On appeal he raises these questions: 1. Whether or not the trial court committed error in ruling a reasonable and necessary extension was granted pursuant to Art. 27, § 616D of the Interstate Agreement on Detainers Act? 2. Whether or not the evidence was sufficient to support the conviction? 3.

Whether or not the trial court erred in admitting into evidence the contents of several telephone conversations? ³⁷⁸ Appellant, while incarcerated in the United States Penitentiary in Lewisburg, Pennsylvania, sent in proper form a request for final disposition of the instant charges then pending against him in Montgomery County, Md. pursuant to the Interstate Agreement on Detainers Act, Art. 27, §§ 616A — 616R. This notice was received on August 14, 1972, by the State’s Attorney for Montgomery County and by the Circuit Court for Montgomery County thus establishing February 10, 1973, to be the final statutory date for trial, unless there was a proper extension under Md. Code, Art. 27, § 616D (a) which provides in part: “. . . for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” Arraignment was originally set for December 15, 1972, but the paperwork involved in detainer actions is so involved that before it could be completed the arraignment date passed. 1 On February 6, 1973, four (4) days prior to expiration of the statutory period, the appellant was presented for arraignment before Judge Plummer M. Shearin, in the Circuit Court for Montgomery County. At the arraignment, the appellant moved for a speedy trial and for a trial by jury. Judge Shearin granted the motions and, in order to permit counsel to prepare and to permit defense counsel to conduct informal discovery, as he requested, set trial for March 5, 1973, a date twenty three (23) days beyond the statutory period.

On February 14, 1973, appellant filed a motion to dismiss the indictment with prejudice, under the Act, § 616F (c). He asserted the statutory date had passed and that trial could not be held to meet the statutory prescription of § 616D (a). ³⁷⁹ On March 5, 1973, the motion was renewed and denied by Judge Mathias. Immediately thereafter, trial commenced. The State produced as its first witness, Mr. Hildebrand, the owner of a beauty shop, who testified that on January 7, 1972, he received a phone call from an unknown person who identified himself as “Roger” from United Parcel Service.

Roger worked the flim-flam by telling the witness that a relative had so many televisions in stock that he could let them go at a very cheap price, e.g., $150 for a 23 inch color console, and that Hildebrand would get a free television for procuring subscribers. 2 The witness told his employees and customers of the conversation. His salesman, Mr. Clarke, took the phone to talk to Roger. The television purchase scheme was repeated to Clarke, who from then on conducted the collection of money, which amounted to over $5,000 from 30 to 40 people. Clarke, after a mixup that night, talked to Roger by phone the next day, Saturday.

Clarke testified about the conversation: “I was supposed to meet a man named Walter in Wheaton Plaza and he [Roger] did not give me too many details over the telephone. He said Walter would take care of it. He said, ‘You do not have to worry about anything.’ ” The witness described his car so that Walter could spot him at the Wheaton Shopping Center. Later that day, Clarke parked in Wheaton Plaza and, as prearranged, was approached by W alter, whom the witness then identified to be the appellant on trial.

The witness testified that the appellant wore a Montgomery Ward ID tag. The witness and the appellant entered the Hot Shoppe cafeteria, wherein the appellant showed the witness brochures and catalogues of televisions containing serial numbers identical to those detailed by Roger over the phone. The witness testified that the appellant then described the operation, stating his brother-in-law was working for the distribution part of the RCA Victor plant, which ³⁸⁰ manufacturer makes Airline television sets for Montgomery Ward. He sent a truckload of televisions bearing the brand name “RCA” which Montgomery Ward cannot sell because they are not the “Airline” brand. “I asked him could I get in trouble and he said, ‘No, there are different ways I can do it.

I am considering you a wholesaler because we get a shipment in and it costs too much to send back to the company. So later then just to take another percentage of the actual price, wholesale price, we can sell in quantity to you and take your name as a wholesaler.’ ” The appellant phoned Roger. After the witness'talked to Roger, he gave the $5000 cash to the appellant. Mr. Clarke testified: “He had me psyched up between talking to the both of them and he said, ‘You have got to give the money now so we can get the truck out of here and go.’ . . .1 was supposed to go up to the mail machine center in Wheaton Plaza and he was supposed to come up in the company truck and bring the sets.” The appellant departed and entered the Wards Store.

The witness entered his car with the expectation that the televisions were soon to be brought to him in a Montgomery Ward truck; then he was to blink his car lights and the truck would follow as he distributed the T.V.s to the 30 to 40 subscribers. Clarke was left holding his subscriber list; the televisions were never delivered. During trial, the appellant unsuccessfully objected to introduction into evidence of the substance of the telephone conversations between Roger and Clarke and Hildebrand. I The Interstate Detainer Agreement The Interstate Agreement on Detainer provides in pertinent part for the voluntary return to Maryland of prisoners presently incarcerated under sentence in foreign jurisdictions but against whom detainers have been filed concerning crimes committed in Maryland.

The instant case involves two sections of the Act: (1) § 616D (a) which requires trial within 180 days subsequent to receipt by proper Maryland authorities of the prisoner’s request for final disposition, unless the period is extended by a “necessary and reasonable” continuance for “good cause” ³⁸¹ shown; (2) § 616F (c) which enforces violations of § 616D by requiring that the pending indictment be dismissed with prejudice. These sections, the Court of Appeals of Maryland has recently interpreted to be self-executing. Hoss v. State, 266 Md. 136 , 292 A. 2d 48 (1972). 3 The Court held the motion for a § 616D continuance had to be made and granted within the prescribed 180 days to effectively halt the running of the period and thereby to preclude dismissal under § 616F. The statute expressly provides that it is to be liberally construed so as to effectuate its purposes; thus the Court required prophylactic application of § 616F (c).

Therefore, the indictment against Hoss was dismissed with prejudice. In explaining this rationale, the Court quoted from State v. Lippolis, 107 N. J. Super. 137 (App. Div.), 257 A. 2d 705, 709-10 (1969): “. . . [I]t is appropriate to remind ourselves of the serious disadvantages of prisoners serving a term in one state but under detainer for untried indictments of another. This situation, relief of which is the heart of the policy of the interstate act, has been cogently summarized by Mr. Justice Stewart in Smith v. Hooey, 393 U. S. 374, 378-380 , 89 S. Ct. 575, 577 , 21 L.Ed.2d 607 (1969). See also Note, 18 Rutgers L. Rev. 828 , 833-34 (1964); Note, 77 Yale L. J. 767, 769-71 (1968). “* * * The Legislature adopted the dismissal sanction not because a prisoner would be prejudiced at trial if trial were delayed more than 180 days after demand but because such a sanction for failure to try defendant within a fixed, reasonable ³⁸² period of time after demand was regarded as essential to produce general